For a variety of reasons, employers are typically very circumspect in what they say about their current and former employees. In addition to the usual defamation and privacy concerns, the Michigan Court of Appeals just added one more reason to watch what you say: The Bullard-Plawecki Employee Right To Know Act.
Most employers know that Bullard-Plawecki is the law that gives employees and former employees the right to review their personnel record. It's much more than that, however. While the Act does regulate employee access to their personnel record, it also places limits on what can be included in an employee's file and imposes certain limits and obligations on employers when releasing the contents of a personnel record to a third party. It was these disclosure obligations that got the employer in trouble in McManamon v. Charter Township of Redford, Nos. 262040 & 263260 (Mich. Ct. App. Dec. 5, 2006).
The plaintiff in McManamon had been suspended from his employment due to performance issues and his involvement in a suspected embezzlement of Township funds. During that time, the local newspaper contacted the Township Supervisor who confirmed the suspension. The newspaper quoted the Supervisor as stating that "McManamon was suspended due to problems in the performance of his day-to-day duties beyond the embezzlement charge."
Based on this statement to the newspaper, Mr. McManamon sued, alleging that the Township had violated Section 6 of the Bullard-Plawecki Employee Right to Know Act. Section 6 provides that "[a]n employer or former employer shall not divulge a disciplinary report, letter of reprimand, or any other disciplinary action to a third party, to a party who is not part of the employer's organization, or to a party who is not a part of a labor organization representing the employee without written notice [to the employee.]" Unless the notice is required as part of a legal action or governmental investigation, or unless it is waived by the employee as part of an employment application, the written notice must be provided. It must also be mailed by first class mail on or before the day the information is divulged from the personnel record. The Township provided no such notice to Mr. McManamon.
The trial court found that in making the statement to the newspaper, the Township Supervisor "divulged" a "disciplinary report." This was affirmed by the Appeals Court, which reasoned that the term "divulge" means "'to disclose or reveal (something private, secret, or previously unknown).'" Because the suspension was a disciplinary action which was not otherwise known to the newspaper, and because the Township did not provide Mr. McManamon with the required notice, the Court of Appeals agreed that the Township violated Bullard-Plawecki. It dismissed the Township's arguments that it was justified by other statutes and by public policy in making the disclosure, concluding that the issue was not whether the disclosure could be made (according to the Court, it could), but rather the process that had to be followed in making the disclosure. Ultimately, the Court remanded the case to resolve the issue of what damages were caused by the Township's failure to abide by Bullard-Plawecki's notice procedure.
The McManamon case serves as a useful reminder that when discussing an employee or former employee with a third party--be it a prospective employer, a governmental agency, or a newspaper--even though you may be privileged to disclose certain information, you must provide the employee with notice if you disclose any disciplinary information. The case also demonstrates that disclosure is not limited to providing copies of documents. It can be as simple as commenting that the employee was suspended or that he received a written or verbal warning.
If you have any questions about the Bullard-Plawecki Employee Right To Know Act, its notice requirements, or any other labor or employment related matter, please contact any member of our Labor and Employment Law Practice Group.